FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4462
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PEDRO JUAN ALCAZAR,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.
July 22, 2019
KELSEY, J.
Appellant was charged with six counts of vehicular homicide
in 2010, arising out of a horrendous traffic accident in which
there was evidence from which the jury could conclude that he
was driving recklessly at over ninety miles per hour in a sixty-
five-mile-per-hour zone. Witnesses saw him cutting in and out of
traffic with his seat laid back, his music turned up, his hand out
his window, and himself bouncing around in his seat. While
attempting to cut between a van in the right lane and a small
sedan in the left lane, he lost control of his car and hit the sedan,
causing it to spin across the median into oncoming traffic—where
it was hit, flipped, and run over by a Ford F350 pick-up truck
with forty-nine-inch tires, pulling a twenty-four-foot flatbed
trailer. All six occupants of the small car were killed. They were
all related to one another, including four children, ages four
(twins), twelve, and sixteen. It was Good Friday, and they were
on their way to a family reunion. Appellant, whose car also
crossed over the median into oncoming traffic and spun around,
was unharmed. Multiple witnesses and abundant forensic and
accident-reconstruction evidence placed the blame squarely on
Appellant.
Before trial, Appellant’s counsel moved the trial court to
appoint an expert to determine whether Appellant was competent
to stand trial and whether he was insane at the time of the
accident. The trial court noted that it had reasonable grounds to
question Appellant’s competence, and appointed an expert to
evaluate Appellant. The expert, Dr. Krop, evaluated Appellant in
2011 and sent a report directly to the trial judge, finding
Appellant competent to proceed. However, we have no record that
counsel did anything further on this issue, nor that the trial court
held a competency hearing or entered an order finding Appellant
competent.
Appellant proceeded to trial in 2014. He discharged his
counsel, and at the conclusion of a Faretta hearing the trial court
conducted a colloquy to determine if Appellant was competent to
make a knowing and intelligent waiver of counsel. Appellant
denied any mental illness or history thereof. The trial court
concluded, “I find that the defendant is competent to discharge
his counsel and that his waiver is knowingly and intelligently
made.” Appellant proceeded to represent himself with standby
counsel present. The record before us does not indicate that
anyone, including standby counsel and the trial judge, questioned
Appellant’s competence during trial, directly or indirectly. He
was convicted as charged; and the trial court imposed six
concurrent sixty-year prison sentences.
Counsel for Appellant on his direct appeal did not raise any
issue related to Appellant’s competency. We affirmed. Alcazar v.
State, 166 So. 3d 767 (Fla. 1st DCA 2015) (table). New counsel for
Appellant then filed a petition alleging ineffective assistance of
appellate counsel, because direct-appeal counsel failed to argue
the trial court erred by not holding a competency hearing and
entering an order on competency. We granted that petition,
remanding “for the trial court to hold a nunc pro tunc hearing to
determine petitioner’s competency to stand trial.” Alcazar v.
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State, 201 So. 3d 838, 838 (Fla. 1st DCA 2016) (“Alcazar II”). We
cited and quoted from our opinion in Brooks v. State, 180 So. 3d
1094, 1096 (Fla. 1st DCA 2015), as follows:
If there is evidence that existed previously which
supports a finding that [petitioner] was competent at the
time of trial, the court may make a determination of
competency, nunc pro tunc, with no change in the
judgment. However, if the court cannot make a
retroactive determination, it must properly adjudicate
[petitioner’s] present competency and, if [petitioner] is
competent to proceed, conduct a new trial.
Alcazar II, 201 So. 3d at 838.
On remand, Appellant’s present counsel filed a notice of
appearance, but nothing else. Ten months later, without holding
a hearing, the trial court entered an order finding Appellant was
competent at the time of trial. The order recited the filing of the
motion for evaluation, the appointment of Dr. Krop as an expert,
and the filing of the expert’s report finding Appellant competent.
The order attached all of the referenced documents. The trial
court noted that, “[s]ubsequent to Dr. Krop’s evaluation and prior
to trial the question of defendant’s competency was not raised
and at no time did the Court witness anything to call into
question Dr. Krop’s conclusions.” The order concluded with the
trial court’s finding that Appellant was competent at the time of
trial. No motion for rehearing was filed.
Appellant now challenges the order finding him competent at
trial nunc pro tunc, arguing first that it was improper for the
trial court to enter the order without a hearing. The State
concedes error, and we agree. When this Court issues a mandate
with specific instructions, the lower tribunal must follow those
instructions, and has no discretion or authority to do otherwise.
See Manata v. State, 226 So. 3d 1027, 1028 (Fla. 1st DCA 2017)
(quashing new order, enforcing mandate, and directing trial court
to expressly follow this Court’s particular directions and mandate
without deviation); Ketcher v. Ketcher, 198 So. 3d 1061, 1063–64
(Fla. 1st DCA 2016) (quashing new order and enforcing mandate
where this Court ordered new findings and considerations on
amount of alimony, yet trial court reconsidered type of alimony).
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Because the trial court’s failure to hold a hearing violated
this Court’s mandate, and Appellant has now requested a hearing
through this appeal, we must reverse and remand for a hearing.
After that hearing, if there is evidence from which the court can
find Appellant was competent at trial, the court may make a
nunc pro tunc determination of competency. See Alcazar II, 201
So. 3d at 838 (quoting Brooks, 180 So. 3d at 1096). If the court
cannot make that retroactive determination, and Appellant is
presently competent, he is entitled to a new trial. See id. We
caution that this decision should not be construed as creating
precedent requiring in all similar cases a full-blown evidentiary
hearing with live witnesses. A brief hearing is sufficient if the
issue and the evidence are before the court and the court rules.
We do not pass upon Appellant’s second argument, that Dr.
Krop’s 2011 report finding Appellant competent was stale by the
time of the 2014 trial. This is raised for the first time here, and is
neither preserved nor fundamental error. See Bittle v. State, 245
So. 3d 792, 795 (Fla. 4th DCA 2018) (holding staleness required
an objection and was not fundamental error), review granted, No.
SC18-1676, 2019 WL 1033836 (Fla. Mar. 5, 2019).
REVERSED and REMANDED.
ROBERTS and OSTERHAUS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Luke Newman of Luke Newman, P.A., Tallahassee, for Appellant.
Ashley Moody, Attorney General; and Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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